Martinus Nijhoff Online

 Contemporary Issues in International Arbitration and Mediation: The Fordham Papers (2010)

Contents

• • Preliminary Material (i-vliii)   (779K)
    • Jump to section:
    • Contents
    • Introduction: The 2010 Revision Of The UNCITRAL Arbitration Rules
    • Contributors
    • List Of Abbreviations And Acronyms
  • The Unsound “Plama Principle” And Other Errors In Application Of The Vienna Convention On The Law Of Treaties (1-21) by Charles N. Brower and Anke Meier   (935K)
    • Jump to section:
    • Introduction
    • The Discredited “Plama Principle”—The Vienna Convention Does Not Provide A Different Standard Of Interpretation With Respect To Mfn Clauses
    • Contextual Interpretation Requires Consideration Of The Entire Text Of A Treaty, Keeping In Mind That It Is The Purpose Of Mfn Provisions To Create Exceptions To Other Treaty Provisions
    • The Role Of Third-Party Treaties In Pari Materia As Supplementary Means Of Treaty Interpretation
    • Conclusion
  • Issues Relating To The Identity Of The Investor (22-32) by Maurice Mendelson   (905K)
    • Jump to section:
    • Introduction
    • Identifying The Investor
    • Nationality Of Claimants
  • The Scope Of Investor’s Protection Under The ICSID/BIT Mechanism: Recent Trends (33-49) by Brigitte Stern   (921K)
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    • A Material Approach To The Definition Of A “Protected Investment”
    • A Procedural Approach To The Definition Of A “Protected Investment”
  • What Constitutes An Investment And Who Decides? (50-70) by W. Michael Reisman and Anna Vinnik   (939K)
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    • The “Substantial Contribution” Requirement
    • The “Duration” Requirement
    • The “Risk” Requirement
    • The “Contribution To Development ”Requirement
  • Interaction Of International Tribunals And Domestic Courts In Investment Law (71-94) by Christoph Schreuer   (713K)
    • Jump to section:
    • Introduction
    • Prior Use Of Domestic Courts
    • Competition Between Investment Tribunals And Domestic Courts
    • Support By Domestic Courts In Investment Arbitration
    • Interference By Domestic Courts In Investment Arbitration
    • Mutual Scrutiny Of Investment Tribunals And Domestic Courts
  • Revelation And Reaction: The Struggle To Shape American Arbitration (95-153) by Thomas J. Stipanowich   (1M)
    • Jump to section:
    • Introduction
    • The Wellspring: Federal Substantive Law Under The FAA And Its Preemptive Effect
    • Stolt-Nielsen S.A. V. Animal Feeds International: Back To The Well
    • Rent-A-Center, West, Inc. V. Jackson: Replacing The Gatekeeper
    • The Pendulum Swings: Pending U.S. Legislation On Binding Arbitration
    • Conclusion
  • The Enforceability Of The Arbitration Agreement: Who Decides And Under Whose Law? (154-164) by George A. Bermann   (664K)
  • International Arbitration’s Public Realm (165-184) by Catherine A. Rogers   (703K)
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    • The Public Side Of Private
    • Public Law Claims In International Arbitration
    • Public Goods Generated By International Arbitration
    • Conclusion
  • Fortress U.S.A.: Two Troublesome Defenses Against The Recognition And Enforcement Of Foreign Arbitral Awards In The United States (185-198) by Ben H. Sheppard Jr.   (912K)
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    • Case 1
    • Case 2
    • Case 3
    • Case 4
    • Consent To Jurisdiction
    • Conclusion
  • The Use Of Arbitration In Securing WTO Compliance (199-224) by Andrew Shoyer and Kimberly Myers   (950K)
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    • Introduction
    • Overview Of WTO Dispute Resolution Process
    • Implementation
    • Evolution In WTO Implementation Of Panel And Appellate Body Reports
    • Conclusion
  • Precedent In The Settlement Of International Economic Disputes: The WTO And Investment Arbitration Models (225-246) by Giorgio Sacerdoti   (704K)
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    • The Issue Of “Precedent” In International Adjudication
    • Precedent In Common Law Systems
    • Precedent In Civil Law Systems
    • International Law: The International Court Of Justice
    • Other International Courts
    • The Issue Of Precedent Before The Appellate Body Of The WTO
    • The Role Of Previous Decisions In Commercial And Investment Arbitration
    • Following Precedent Versus Developing Jurisprudence At ICSID
    • Precedent Within ICSID Annulment Committees
  • Utilizing WTO Law In Investor-State Arbitration (247-283) by Greg Tereposky and Morgan Maguire   (1M)
    • Jump to section:
    • Introduction
    • What Is WTO Law?
    • WTO Law Is Concerned With “Trade” In Goods And Services And Certain Aspects Of Intellectual Property Rights And Only Addresses “Investment” In A Very Limited Manner
    • Potential Applications Of WTO Law In Investor-State Arbitration
    • Conclusions
  • The Future Of WTO Dispute Settlement: A Practitioner’s Assessment (284-304) by Richard O. Cunningham   (695K)
    • Jump to section:
    • Introduction
    • Using WTO Dispute Settlement To Contest The Results Of Import Relief Proceedings
    • The Unsettled Future Of WTO Dispute Settlement Involving Subsidies And Behind-The-Border Practices
    • The Need For Greater Participation By Developing Countries Before The DSU
    • The Consequences Of The Lack Of Sufficient Use Of The DSU System By Developing Countries
    • Making WTO Litigation More Accessible To Poor Developing Countries
    • Conclusions
  • On Babies And Bathwater: Keeping The Good (And Getting Rid Of The Bad) From The Company’s Perspective (305-321) by Siegfried H. Elsing   (918K)
    • Jump to section:
    • Introduction
    • Development Of International Arbitration
    • Proposed Solutions
    • Conclusion
  • Arbitration Of International Commercial Disputes (322-332) by Frank H. Menaker Jr., Stephen E. Smith, Louis B. Kimmelman, Claudia E. Ray and Dana C. MacGrath   (662K)
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    • Scope Note
    • Effective Partnering Strategies
    • Effective Partnering Strategies—The Team Approach
    • Effective Partnering Strategies—The Team Approach—Selecting Outside Counsel
    • Effective Partnering Strategies—The Team Approach—Selecting Other Team Members
    • Effective Partnering Strategies—The Team Approach—Roles Of Inside And Outside Counsel
    • Effective Partnering Strategies—The Team Approach—Developing A Strategy
    • Effective Partnering Strategies—The Team Approach—Potential Benefits Of The Team Approach
  • Transparency In International Arbitration: What Are Arbitrators And Institutions Afraid Of? (333-356) by Michael McIlwrath and Roland Schroeder   (946K)
    • Jump to section:
    • Introduction
    • Current Efforts To Address The Time And Cost Concerns Of The User Community
    • The Missing Link: The Need For Greater Transparency Regarding Performance Of Arbitrators And Institutions
    • Conclusion
  • Avoiding The Costs Of International Commercial Arbitration: Is Mediation The Solution? (357-403) by John M. Barkett   (1M)
    • Jump to section:
    • Introduction
    • Mediation Rules
    • Mediation Principles To Maximize The Likelihood Of A Settlement
    • A Word On Confidentiality
    • Conclusion
  • International Mediation: An Evolving Market (404-417) by A. Timothy Martin   (761K)
    • Jump to section:
    • Introduction
    • Time & Cost Advantages
    • Success Rates
    • Growth In International Mediation
    • Evolving Market
    • Conclusion
  • Inside Counsel As Sophisticated Users Of The Mediation Process (418-433) by David H. Burt   (919K)
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    • Litigation Is Unbusinesslike
    • Tapping Your Knowledge Of The Company, Industry And People
    • When A Client Needs Help
    • Daring To Be Efficient And Effective
    • Reaching Across The Divide
    • The Mediator Is Your Friend
    • All Your Hats
    • Promoting ADR Culture
    • If It’s Working, Let It Work
    • Remember Why We Are Here
  • International Mediation, Arbitration, And Innovation (434-440) by Tai-Heng Cheng   (652K)
  • Lessons From Russian Mediators (441-461) by Simeon H. Baum   (934K)
    • Jump to section:
    • Introduction
    • Reflections On The International Conference On Mediation
    • Modest Meditations On The Master Class On Commercial Mediation
    • Brief Encounters Of The Legal Cross-Cultural Kind, And An Overview Of The Federal Mediation Bill
    • The Mediator
    • Registry Of Organizations
    • Initiating The Mediation, Voluntariness, And Impact On Domestic And Foreign Transactions
    • Confidentiality
    • Writings Required: Agreements To Mediate, Proposals To Mediate, Settlement Agreements
    • Parting Shots
  • Resolution Of Disputes By ICC Dispute Boards (462-477) by Peter M. Wolrich   (674K)
    • Jump to section:
    • Introduction
    • What Is A Dispute Board And When Is It Appropriate To Use A Dispute Board?
    • How Can A Dispute Board Assist The Parties?
    • The Three Types Of Dispute Boards Under The ICC DB Rules
    • Conclusion
  • ICC ADR: Rules And Approaches For Reaching An Amicable Solution (478-483) by Suzanne Ulicny   (649K)
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    • ICC ADR Services
    • ICC Expertise
    • Conclusion
  • The International Centre For Dispute Resolution Mediation Practice (484-496) by Luis M. Martinez and Thomas Ventrone   (665K)
    • Jump to section:
    • Why Use Mediation And Why Use The ICDR?
    • The Mediation Process
    • Selecting & Appointing The Mediator
    • Disclosures
    • Scheduling A Mediation Conference
    • Processing Payment Of The Parties
    • Closing The Mediation File
    • Handling Unilateral Requests For Mediation
    • Mediation Is Offered In All ICDR Cases
    • The ICDR Mediation Clauses
    • ICDR Statistics
    • Conclusion
  • Index (497-516)   (702K)